RIAA's Backdoor Plan For Using 'Six Strikes' Plan To Cut Off Internet Access For People

from the sneaky-sneaky dept

Following Torrentfreak's publication of a slide from a confidential RIAA presentation, they've now released another damning slide, showing (among other things) that the RIAA did not think that SOPA/PIPA would be effective in stopping music infringement:

Of course, they also insist that the opposition was "activated by Google," which is flat out untrue, even though I know the RIAA folks believe it (I had a conversation with an RIAA person a few months ago, and nothing would shake his absolute conviction that the whole thing was a Google plot).

To be honest, this "confession" is not a huge surprise. While many people often lump the MPAA and RIAA together, SOPA/PIPA was almost entirely driven by the MPAA. The RIAA basically did the least amount required to officially show its support for the bill -- but all of the pushing for the bill was done by the MPAA. I had wondered if it was just a sign that the RIAA is simply running out of steam as its main members are dwindling, but now it seems clear that even they realized SOPA/PIPA was not an effective plan. Of course, when we explained why SOPA/PIPA wouldn't have been effective, supporters claimed we were behind a misinformation campaign. I guess the RIAA was a part of that campaign as well, huh?

But, perhaps even more interesting was another tidbit later in the TorrentFreak post, concerning how the RIAA views the six strikes plan. For some background, while various "three strikes" plans around the globe are focused on taking away internet connections after accumulating three "strikes" (based on accusations, not convictions), when the "voluntary" (with a big shove from the government) plan was put in place, part of the messaging was that disconnection was not an option.

However, according to the presentation, it appears that the RIAA has a backdoor plan to put in place a disconnection regime. Basically, they're noting (accurately) that the DMCA already requires that service providers who wish to retain safe harbors have a "termination policy" in place. That's true. But here's the sneaky part: the RIAA is ready to insist that a reasonable termination plan under the DMCA would require an ISP to terminate a user once they get to those six strikes. In other words, the plan doesn't require termination -- which was necessary from a PR standpoint -- but the RIAA is going to claim that the law already requires it. Sneaky, sneaky:

Some ISPs do indeed threaten to disconnect users for infringement based on a TOS violation. However, Sheckler says that the responsibilities of Internet companies go further and as carriers they are governed by legislation.

In order for ISPs to be eligible for safe harbor provision under the DMCA, she writes, they are required to have a “termination policy for repeat infringers” under “appropriate circumstances.”

So, although account disconnections aren’t specifically included in the list of “six strikes” mitigation measures agreed in the Memorandum of Understanding, the RIAA is clearly aware that if they’ve issued infringement notices against an account holder six times, then that user has a good chance of being viewed as a “repeat infringer” by their ISP – at least if prompted to do so by the RIAA.

This is the RIAA I'm used to. Using misdirection and sneaky language to get what it wants while claiming otherwise publicly.

For what it's worth, we've heard that some of the reasons for the delays in launching the six strikes plan has to do with the ISPs pushing back on RIAA/MPAA desire for disconnections to occur. I don't know how accurate that is, but it would fit with what's stated above -- and certainly suggests we haven't seen the last of this. If anything, it sounds like a lawsuit may eventually have to be filed to see if the RIAA can effectively force an ISP to terminate accounts over the six strikes plan...

activated by Google

> "activated by Google,"

You're not going to convince crazy people otherwise. They live in their own unique reality.

These people still think that it should be a crime to copy music from YOUR disk to YOUR mp3 device, and that for this crime they should be able to ruin your future, and claim decades worth of your future income.

"In order for ISPs to be eligible for safe harbor provision under the DMCA, she writes, they are required to have a “termination policy for repeat infringers” under “appropriate circumstances.”"

That's a cute lawyeristic way to look at it and all but at what point does the six strikes plan involve criminal charges, fair trials, and convictions before the accused are actually determined to be "infringers?" Since infringement can't be determined merely by accusation, this supposed requirement for a termination policy wouldn't apply to the six strikes plan since no guilt is ever determined.

Re:

There's nothing "cute" about it. People have been allowed to skate on this forever, so they think infringing is ok, but the fact is that the 'repeat infringer' language is right there in the DMCA and it's the law. At some point this is going to make it's way through the courts and the law will finally be enforced as it's supposed to be.

Re: Re:

So you're saying that "repeat infringers" should be as easily identified as "infringing content" is, despite the fact that the copyright holders don't even know what is infringing or not (e.g. Viacom suing Google over content that Viacom itself uploaded to YouTube and the gov't taking down Dajaz1 at the say so of the RIAA though the RIAA could never bring evidence of infringement).

Without supporting due process and necessity of actual convictions to determine guilt, your "it's the law!" argument completely falls apart.

Re:

And make sure you also do not ever give your money to any of the Big Content Companies.That means to not ever go near Netflix,iTunes,Amazon,MPAA, ETC.
If you are serious like I am you never allow any of these guys a way into your Wallet.
Buy & Support Local Art and INDIE Art.
Do not Support Big Content Ever.

Re: Re:

Also, if for whatever reason you want to pick up something put out by them, buy used. It's not only more environmentally friendly, it also drastically lowers, if not entirely cuts out, the cut of the purchase they otherwise would have gotten.

Re:

Now noticing that, I think they might send in some T-units in to exterminate them when they get their six strike, or maybe sooner if the user get something that might destroy the RIAA's business plans.

So instead of Apple or Google being SkyNet, the RIAA is. ... We're screwed.

Re: Re:

Nah, Skynet looked state of the art and technologically savvy, which is not the RIAA's speed at all. They'd insist on using clockwork terminators that barely function, self-destruct if you try to examine their components, and are more likely to attack people on their own side.

Re: Re: Re: Re: Re:

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Actually I heard about the whole SOPA, PIPA, ACTA thing here on Techdirt first and then people, people who aren't even pirates or techies started sharing it on Facebook.
I saw articles on CNet and such too and these are definitely not Google properties.
Of course we all know that everybody here but you is a pirate, or at least you keep accusing us of it.

Re: Re:

If they terminate my connection at which point I go down to the store and sign up again... I might just laugh at their effort. If not, I'm sure someone out there would be happy to spend some free time accusing RIAA employees of infringement.

so why was this not discussed and then clarified when the 'disconnection was not an option' part was included in the 6 strikes plan? am i to believe that the ISPs were stupid, or were too trusting of the RIAA etc (real bad move!!) or knew nothing of that part of the DMCA being ported over or were told it wouldn't be used? whichever, yet again, it will be the people who suffer. why cant government just read what the RIAA has released, all be it supposedly for private consumption only (too late now!) and tell them exactly what their fortune is, like 'you have made us look like prats, even though we helped, but you ain't gonna do it any more! now leave the people alone and adapt before you fuck things up even more!'

How about I turn around and accuse the MPAA of defamation of character six times and then, once I've accused them, they lose (Insert Something Significant Here).
It just boggles the mind that they are actively supporting a system where you are punished upon accusation. Why is it they can't see that this will blow up in their faces?

This is something I've seen spouted more and more by copyright maximalists over the last few months...basically a variation of "ISPs need to follow the law and terminate repeat infringers!"

And of course, since they're not doing it - or so the maximalists believe - ISPs are also profiting from piracy.

I understand that the DMCA (sorry, don't know which part) requires that service providers have a repeat infringer policy, but is there something in the law that says that infringers MUST be disconnected? I mean its just a policy, right?

Also, could the RIAA take the ISP to court for not terminating somebody? Is this why so many ISPs agreed to this "voluntary" plan (Yes, Mr RIAA, don't sue us and we'll disconnect whoever you want. Sure, we'll lose them as a customer but we'll sure save on those legal bills!)?

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Reddit is the internet mob, of more more account to the MAFIAA than 'customers'. Google is different, Google makes "fuck you money", gobs and gobs of it, and to their way of thinking, money is power. But Google does nothing with all that power except make kind of cool things and GIVE THEM AWAY FOR FREE....or something...I don't know why Google is the 'enemy'.

I wish "Big Search" boB would explain it, even though every time I hear one of his posts it's in Daffy Duck's voice.

Considering that roughly 2/5ths of all DMCA takedown requests are bad ...

Considering that roughly 2/5ths of all DMCA takedown requests are bad according to Google ... this is very sobering news.

Considering that there is a whole cottage industry now of people profiting from inappropriate takedown requests, doubly so.

I don't know that the ISPs or any judge will buy this argument. However, the fact that the RIAA would like to make it reflects very poorly on them. They KNOW their bots get a lot of false positives. They just don't care who they hurt.

How does any of this sell more music? Who, caught in this scheme, will turn around and buy mp3s? Will their friends and family?

I wonder if MPAA/RIAA with their thug tactics and blaming of Google just make Google look like heroes. And guess what if google becomes an ISP people will flock over simply because they won't try this BS with their users. Not to mention in a previous techdirt story they are getting 1Gbps for $70 a month. Tons better than what Verizon is trying to sell me with what they shamefully call quantum.

False positives

David Lowery said the problem isn't stealing ... artists rose up to agree with him ... some on TechDirt called it a turning point.

And our noob troll agrees too: "the fact is that the 'repeat infringer' language is right there in the DMCA and it's the law. At some point this is going to make it's way through the courts ..."

The DMCA does not address taking property. 'Repeat infringement' is a distinct violation (of whatever nature) from any kind of stealing, and laws against stealing "made their way through the courts" hundreds of years ago.

Then, like Gollum, he starts to yammer at himself.

There is some question as to whether the repeat infringer language of the DMCA can be applied in this case because it would effectively deny due process. Your ISP can choose to terminate your account at any time, but can the government COMPEL them to do so? Remember, this system is going to generate a lot of false positives and you have to pay the ISP to even review them. Is this sufficient for a government-enforced sanction?

Re: False positives

I can't get faster than a 1 MB connection in a metropolitan area, but they can afford to build a system to service an outside group, give them the right to used flawed tech to make allegations that can have my service terminated and pass the costs onto me? Well that is where it will get fun.

A user will sue the shit out of their former ISP, the PR firm, and their secret monitoring service.

The monitoring service will have to admit they can not prove any copyright infringement took place, and that the technology they use has been shown to be unreliable.

Then the court will address a deal between the cartels and ISPs to allow the cartels to have say over the users rights.

The ISPs are taking action outside of the legal system, based on pressure from a lobbying firm dressed up to be a real company.

I'm sure the monopoly status they enjoy in many areas of the country will not bite them in the ass at all.

I'm sure people won't demand we stop subsiding a system that wants to be the enforcement arm of allegations of questionable merit.

I'm sure the cartels are more than willing to give the ISPs money so they can purchase right of ways and easement rights as the rates for those should climb in response.

Well thought out...

I'm guessing that no one in the RIAA thought this through at all. I say let the terminations begin.

The younger generation is doing the bulk of all this infringing. Soooooo. Child infringes then household loses its service. This would, in effect, target the people in the household who are MOST likely to actually be paying for movies and music. Young adults are savvy enough to infringe on wifi/mifi (other people's connections,) so the target becomes hotspot owners, yet again people likely to pay.

The likely reaction to all those terminations will be another Google plot to force sensible legislation.

Yup, when the two of them are lumped together they form MAFIAA (Music and Film Industry Association of America). They try to extort money from poor people and ruin their lives. Pretty much the same way the Italian Mafia used to operate back in the old days. They are the 21st centery MAFIAA v2.0